Chicago Gun Case Incorporation Lawsuit

[RDak]

I see maestro. Nevermind.

Thanks for the Cato link.

[Al Norris]

I see the CATO brief cites David Uphams "Note," pg 23.

[Tom Servo]

Pistolero, that link is for their brief from the petition stage. Today's brief is here.

Academics for the Second Amendment have theirs up here, authored by Olson, Hardy and Cramer. They trace the evolution of the 2A from its 18th century roots to its Reconstruction-era interpretations.

The Congressional brief is here. 57 Senators (19 Democrats) and 257 Representatives signed on in total. There are no great legal insights we haven't heard in any other briefs, but it does mention an interesting historical point:

At the outset of World War II, Congress authorized the President to seize certain property for the national defense under the Property Requisition Act. The Act explicitly excluded “the requisitioning or. . . registration of any firearms possessed by any individual for his personal protection or sport” and further denied that the Act could be used “to impair or infringe in any manner the right of any individual to keep and bear arms.” p. 29

They also argue that state-level firearms restrictions impede the ability of Congress to call forth militias.

Most of the Senate signatures come from gun-friendly states, but several Representatives from New Jersey and New York have signed on as well.

[Tom Servo]

The Institute for Justice has their brief up.

Their theme of their brief is that the 14th Amendment was meant to give teeth to the antislavery protections of the 13th, and that the marginalization of the 14th allowed conditions of "constructive servitude" to exist. They ask that the Court look at the whole intent of the Privileges or Immunities clause, and not simply use it only as a mechanism for incorporation:

There is ample historical evidence that the purpose of the Fourteenth Amendment, and particularly the Privileges or Immunities Clause, was not merely to provide for the mechanistic “incorporation” of the first eight amendments (it would have been easy enough to say so), but instead to redress a whole host of laws, practices, customs, and mores whose common purpose was to destroy the ability of newly freed slaves to become self-sufficient members of society. p. 12

They argue that, "the Fourteenth Amendment does not “incorporate” the Second Amendment--It protects the pre-existing right to arms from state and local governments."

[Tom Servo]

Dave Kopel has posted a brief in conjunction with the International Law Enforcement Educators and Trainers Association (ILEETA). The argument is summed up in the first sentence: Guns save lives.

This one isn't about the 14th Amendment at all. Rather, it's an ancillary brief written to underscore the point that firearms in the hands of citizens fulfill a useful purpose, and to rebut claims from the respondents that more lenient gun laws will result in civil disorder.

The brief goes into great detail explaining why blood will not run in the streets if the Court incorporates the 2nd Amendment. Lots of charts, graphs and statistics prove the point, and it's worth noting that the information in this one will be useful long after resolution of the case at hand.

[maestro pistolero]

Pistolero, that link is for their brief from the petition stage. Today's brief is here.

Ah, thanks. the first link stopped working, and I found that one very quickly, thanks for the correction.

[Tom Servo]

As the day winds down, we've got a brief from the American Center for Law and Justice.

[Al Norris]

Amicus Brief of 32 California Prosecuters is in.

Looking now for the Brady Center's brief (Alan Gura has said they intend to file).

ETA: The Brady Campaign does have an announcement that they are filing today, but no links as of yet.

[Tom Servo]

ETA: The Brady Campaign does have an announcement that they are filing today, but no links as of yet.

Since the respondents got an extension, does that mean people filing briefs on their behalf got one as well?

Curiously, there's been almost no mention from the gun-control lobby on this case. I checked Helmke's column on the Huffington Post, and there's nothing.

While I was there, I did a search that had some interesting results. There are at least four dozen articles about Heller, but only one about McDonald. I'm wondering if that means what I think it does.

[Al Norris]

As reported on Gura's website, the Brady Campaign is filing a brief that is neither for the Petitioners nor the Respondents. Because of that, their brief was due today.

Amicus Brief CalGuns Foundation is also in. This Amicus Brief literally destroys Fairman's and Berger's work.... High time, I should think.

[Al Norris]

Just checked back to the ChicagoGunCase site and on the Case Filings page, there has been a major update, since I checked last at 7pm. Go to the link above to download any or all of the briefs.

Here are the case filings:

Merits Stage

• Petitioners’ Brief
• Respondents in Support of Petitioners

Amici Curiae In Support of Petitioners

• Cato Institute/Pacific Legal Foundation
• Constitutional Law Professors / Constitutional Accountability Center
• Center for Constitutional Jurisprudence / Atty Genl. Meese, Dean Eastman
• Institute for Justice
• CalGuns Foundation (Debunking Fairman and Berger)
• Texas and 37 other states
• Members of Congress
• Goldwater Institute
• Academics for the Second Amendment
• Law Enforcement Trainers — Failure of Chicago’s gun laws
• Professors of Philosophy — Self-defense
• Heartland Institute — Failure of Chicago’s gun laws
• Nordyke Plaintiffs — Standards of Review
• Women Legislators and Academics
• Buckeye Firearms Foundation
• Maryland Arms Collectors
• Rocky Mountain Gun Owners
• Jews for the Preservation of Firearms Ownership
• Safari Club
• State Firearms Associations
• NSSF
• Eagle Forum
• Paragon Foundation
• Rutherford Institute
• Prosecutors
• ArmsKeepers
• ACLJ
• ACRU
• State Legislators
• GOA

Amici Curiae in Support of Neither Party

• NAACP LDF
• Brady Center

[Hugh Damright]

This Amicus Brief literally destroys Fairman's and Berger's work

I disagree ... and I think we might just as well claim that it destroys Upham's work ... the brief says the P&I includes the USBOR, while Upham/Berger said the scope was more narrow ... the brief says that the Civil Rights Act was intended to prevent violations of the USBOR, but Upham/Berger said it was merely antidiscriminatory ... I think it would make more sense to say that Upham's brief literally destroys the Calguns brief.

[Tom Servo]

So, they got theirs up just under the wire. The Brady Campaign brief is pretty much exactly what I expected.

The whole thing is about "reasonable regulation" and "public interest." Without weighing in on incorporation, they simply beg for a standard of review that's as close to rational basis as they can get without calling it such.

They dig pretty deep (Heffron v. International Society for Krishna Consciousness, Inc.?) to prove that strict scrutiny doesn't usually apply across the board for civil liberties, and they seem to encourage such a situation.

If anything, the Left needs to tread very carefully when praising infringements on 1st and 4th Amendment rights.

Their usual arrogance comes through on page 5:

Gun policy is best determined as it always has been in this country: in the political arena, without courts second-guessing reasoned legislative judgments.

I guess they didn't read this week's 7th Circuit opinion, because they rest part of their case on this:

Our society’s broad acceptance of firearms regulations is confirmed by the fact that while over forty states have constitutions with right-to-keep-and-bear-arms provisions, not one reviews such restrictions under heightened scrutiny. p. 22

Oh, and Arthur Kellerman is used as a source. Twice.

The NAACP brief argues against revisiting the Privileges or Immunities clause at all, claiming,

The Court should turn to the largely unexplored Privileges or Immunities Clause of the Fourteenth Amendment only if it first determines that the Second Amendment right to keep and bear arms is not incorporated as against the states through the Due Process Clause. p. 2

They repeatedly claim that there's nothing wrong with selective incorporation, and that it should be kept, as it has not "suddenly proven unworkable." Sure, no problem. Selective incorporation can work, it just takes a hundred years or so sometimes.

Regarding Slaughterhouse and Cruikshank,

While it is undeniable that these cases are part of a dreadful chapter in the history of this nation, they present no bar to incorporation of constitutional rights as against the states under the Due Process Clause. p. 13

I can't help but get the feeling they're being more than just a bit glib about post-Reconstruction harassment and lynching, something that's confirmed a few pages later:

It would be ironic, to say the least, if this Court decides to reexamine the Privileges or Immunities Clause in this case—which involves firearms regulations in a city where, each year, many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre by white insurgents who escaped federal prosecution in Cruikshank. pp. 5-6

They argue that the Court, "should not decide Constitutional questions unnecessary to the resolution of this case," which is a bit disingenuous, since revisiting Priviliges or Immunities is necessary to the resolution at hand.

If this was 1968 or so, do you really think the NAACP would be so content to forestall a rehearing of the 14th Amendment?

[Bartholomew Roberts]

The NAACP is arguing FOR the Slaughterhouse interpretation of the 14th Amendment and against the Privileges and Immunities clause being applied as it was intended by Bingham?

Wow, talk about ironic - especially given the topic at hand. I guess Lochner returning from the dead scares the NAACP leadership even more than Cruikshank being upheld.

many times more African Americans are murdered by assailants wielding guns despite said firearms regulations, which primarily disarm the law-abiding

Fixed it for Brady.

I also like the cowardly way that both opposing amici framed their briefs as "supporting neither party" when they are actually opposition briefs. If you are going to try and deny people what the Supreme Court has stated is a fundamental, individual, civil right embodied in our Bill of Rights, then at least have the nerve to say so. This business about "in support of neither party" is just to give Brady soundbite cover to reporters who are too ignorant to know better.

ETA: OK, to be fair to Brady, they do not like the idea of incorporating the Second; but they really and truly did not oppose it. They just proposed (once again) that the standard of review for protecting it be watered down to the point that it means nothing as a fundamental civil right. I still regard that as quite cowardly; but you can make the case that it isn't opposition to the basic question in the case.

As for NAACP, well it is clear they are no fans of the Second Amendment either; but their brief is really more a "Don't upset the applecart" brief. The NAACP is less concerned about the Second Amendment and more concerned about having a new approach (P&I) to the 14th Amendment put past precedent at risk. they don't really address how P&I is going to do that; they mostly just plead with the Supreme Court not to change things dramatically and helpfully point out that we can resolve this case without ever revisiting the P&I clause. They do not oppose P&I per se. They are just worried about having a nice, well-understood approach to civil rights shaken up by actually giving the 14th Amendment its stated intent.

Originally Posted by Hugh Damnright

the brief says the P&I includes the USBOR, while Upham/Berger said the scope was more narrow

Hugh, you don't really think that conflating Upham's note with Berger is a fair comparison of how those two authors look at the 14th Amendment do you? Upham isn't even in the same neighborhood as Berger on that issue.

[publius42]

Wow, the NAACP is in a two step panic over P & I vs Due Process. That's got to be the most ironic thing I have ever seen.

[Bartholomew Roberts]

Well, that is pretty much a slam-dunk for incorporation of the Second through either the Due Process clause or the P&I clause.

Note that nobody even tried to argue anything else - in fact, the Brady Campaign, who has pretty much been at the forefront of legal thinking on ways to subvert the Second Amendment, basically acknowledged that the Second Amendment applied to the States and moved right to the "What standard of review should apply?" question.

To me, there is no question that the Second is going to be incorporated. You might ask "If the case is such a slam dunk, how come we are sitting here with two "no incorporation" rulings and a third vacated ruling?" Of course, the trick here was that neither of the "no incorporation" rulings actually did a due process analysis as required. Instead they relied on Cruikshank rather than risk being controversial. The Ninth Circuit applied the due process analysis used for other civil rights and reached the conclusion that the Second was incorporated. It was only vacated when it became apparent the Supreme Court was going to hear the case.

I'm interested in seeing the opposition brief; because they literally have no leg to stand on. I wonder if they will abandon the question entirely as Brady did and go straight to the standard of review?

The law is about as black and white here as it ever gets in a constitutional law case making it to the Supreme Court. It will be instructive to see which Justices try to claim it is actually gray.

Not to mention the weird angle this case is taking with regards to the P&I clause. This has stopped being about the Second Amendment really. The Second Amendment is going to be incorporated. This is really about building a foundation to undo the New Deal (ironic considering we are in the middle of the New New Deal). Realistically though, I don't see that happening. I am thinking 1-2 votes at most for the P&I clause, although given all the weird confluences of law and politics here, who knows? That is really just a WAG.

I never thought I would see the NAACP arguing against the P&I clause being interpreted in the manner Bingham described; but there you go.

[Al Norris]

You'll perhaps forgive me, but didn't the Brady Campaign make a procedural faux pas?

In all the other briefs, if they were taking an approach that differed slightly from the Question Presented, they never mentioned the Question at all. That was assumed, in their briefs.

Here however, the Brady's pose an entirely new question that the Court never agreed to ask, let alone answer.

QUESTION PRESENTED

Amici curiae will address the following question:

Whether governmental regulations of the exercise of the Second Amendment right are subject to strict scrutiny, or whether such regulations are subject to a more deferential standard of review for reasonableness.

In all of the cases I have read since 2004, I have never seen an amicus brief pose to the Court a different Question, unless it was at Cert stage. Certainly, it hasn't happened at the Merits stage.

[Bartholomew Roberts]

I am not up on SCOTUS procedure; but I believe Amicus briefs have to comply with Rule 24, which says: "the brief may not raise additional questions or change the substance of the questions already presented."

The Court can still consider a question evident from the record and within its jurisdiction to decide though. Still, not exactly a great way to start off IMO.

[Tom Servo]

OK, to be fair to Brady, they do not like the idea of incorporating the Second; but they really and truly did not oppose it.

Helmke said a few weeks ago that, even if the Court found for incorporation, they were confident they could still preserve "reasonable regulations." They've already accepted the inevitable. Their brief is just an attempt at damage control.

Realistically though, I don't see that happening. I am thinking 1-2 votes at most for the P&I clause, although given all the weird confluences of law and politics here, who knows?

If SCOTUS wanted to avoid the PorI question, they could have taken the NRA case, which was solely about Due Process. At least four Justices voted to hear this one, though, which makes me think there's some interest in revisiting Slaughterhouse.

[Bartholomew Roberts]

Hmmm, I hope Brady didn't pay money for that brief. In addition to presuming to tell the majority in Heller what their dicta about "presumptively lawful" meant with regards to standard of review, they played spent a lot of time opining without even trying to back up their comment with a cite - which says a lot given the amount of half-assed, debunked research they do cite.

I like how they cited research concluding that higher firearms ownership = higher gun crime without mentioning that the author used Guns & Ammo subscriptions as a proxy for gun ownership. Then of course a host of the usual suspects cited.... Bogus, Saul Cornell, Kellerman.

I'm glad there was the ILEETA brief and other briefs from our side challenging some of this - though those briefs wisely focused on Chicago instead of being more general as the Brady brief was.

Overall, I'm glad Brady didn't do a better job. They didn't have much to work with but they sure did manage to make a mess of what they had.

[Bartholomew Roberts]

As far as votes for P&I goes, I think Orin Kerr had a good point that none of the left leaning Justices are interested in reviving Lochner. Like I said though, just a WAG on my part. There are so many angles to revisiting P&I.

[Tom Servo]

Overall, I'm glad Brady didn't do a better job. They didn't have much to work with but they sure did manage to make a mess of what they had.

The more I consider it, the less I think that the Brady Campaign really wants to be involved in this case. It's a surefire loser for them.

Of course, they're expected to throw their hat in the ring, so they made a half-hearted attempt. So half-hearted, in fact, that they don't even address the primary question presented.

I find the whole situation particularly amusing, given that I met a couple of those guys back in the 1990's, and they were insufferably arrogant back then. I'm feeling a certain sort of schadenfreude watching them fumble for any sort of relevance now.

The count stands at 30 briefs for the petitioners, 2 (dubiously) unaligned, and 0 for respondents. Things have got to be feeling fairly desperate around Oak Park these days.

I think Orin Kerr had a good point that none of the left leaning Justices are interested in reviving Lochner.

The specter of Lochner is going to hover over any discussion of PorI. Only time will tell how relevant a concern that is.

[publius42]

Dubiously unaligned is right.

I thought the NAACP one could at least plausibly claim to be unaligned, though it does nothing but oppose Gura's central point about P&I.

The Brady one was clearly in support of one side and afraid to admit it. It will embarrass part of the Supreme Court and irritate another part, IMO.

Incorporation does appear inevitable at this point, probably the due process flavor because while the NAACP supporting racist Reconstruction Era precedents is certainly ironic, they do articulate some reasons for that approach that seem reasonable.

[RDak]

That's a very good point Al.

I have never seen a formal brief start with a question that wasn't what the SCOTUS stated was being addressed in the first place.

That is weird.

What happens now? Does the SCOTUS just reject it?

I mean, can I now file a formal brief saying, "whether automatic weapons can be outlawed under reasonable scrutiny?"

ETA: And guys/gals, Al is correct, that is how the question is framed in the Brady brief.

http://www.chicagoguncase.com/wp-con...521acbrady.pdf

[Al Norris]

I like the way everallm put it (this post over at thr.us)

The SC has a few pet peeves....amongst other items, they don't like

Being lectured to
Briefs that ignore the question posed by the SC
Having the SC's own findings misquoted
Arguments based on opinion, supposition and discredited sources
Quoting yourself or or your organization as a reliable source
Arguments that imply you and not the SC are more appropriate to interpret Constitutional law
Arguments that state Constitutional law should not be changed as it would change existing law


All of which the Brady brief hit.........:barf:

Assuming that anyone actually reads the brief, it will be ignored. Despite the filing for neither side, it is decidedly in Chicago's camp.